Senate Minority Leader Chuck Schumer vowed to fight any Supreme Court nominee President-elect Trump selects who isn’t mainstream. In other words, if they’re not liberal, prepare for battle. As Democrats rally around this position, which I’m sure made their progressive base happy, outgoing Vice President Joe Biden told PBS’ Judy Woodruff last week that Democrats should give Trump’s nominee a hearing and a vote:
JUDY WOODRUFF: “Once the President-Elect, then President Trump chooses someone, should the Democrats do the same thing and oppose and refuse to go along?”
VICE PRESIDENT BIDEN: “No.”
WOODRUFF: “Or should they thinking you need to fill that vacancy on the court?”
BIDEN: “I think... look, the Constitution says the president shall nominate, not maybe could maybe can. He shall nominate. Implicit in the constitution is that the senate will act on its constitutional responsibility, will give his advice and consent. No one has required to vote for the nominee, but they, in my view, are required to give the nominee a hearing and a vote.”
Well, shouldn’t that have applied to the GOP when they held up the nomination of Merrick Garland last year? No. President Obama nominated Garland, the Chief Judge for the D.C. Court of Appeals, to fill the vacancy left by the late Justice Antonin Scalia. Yet, it was an election year. And no judicial nominees should be put forward during that period. It’s not some made-up rule. As Guy noted, then-Sen. Joe Biden (D-DE) set the precedent back in 1992:
It is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not--and not--name a nominee until after the November election is completed. The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over...
It would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over...Others may fret that this approach would leave the Court with only eight members for some time, but as I see it, Mr. President, the cost of such a result, the need to reargue three or four cases that will divide the Justices four to four are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation wouldhave to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks. In the end, this may be the only course of action that historical practice and practical realism can sustain.
And if that wasn’t enough, Sen. Chuck Schumer and former (oh, it feels so good to write that now) Sen. Harry Reid (D-NV) made the case during George W. Bush’s second term that Democrats should block all of his Supreme Court nominees.
We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”
Schumer’s assertion comes as Democrats and liberal advocacy groups are increasingly complaining that the Supreme Court with Bush’s nominees – Chief Justice John Roberts and Associate Justice Samuel A. Alito – has moved quicker than expected to overturn legal precedents.
Senators were too quick to accept the nominees’ word that they would respect legal precedents, and “too easily impressed with the charm of Roberts and the erudition of Alito,” Schumer said.
Reid said in 2005, “the duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote."
Still, the allegations of hypocrisy will be thrown at the GOP, despite the overwhelming evidence that a) Democrats set the precedent to not consider judicial nominations during an election year (i.e. Biden rule); and b) were the first to deploy the judicial obstruction that Senate Republicans allegedly exhibited towards Garland. The Republicans were just following Senate precedent and using the same talking points the Left used when they were sour over the Roberts and Alito confirmations. Now, with the prospect of a conservative majority in the Supreme Court for the next generation, the Left is frustrated and dismayed. Of course, they tried to say the there is no Biden rule, though it’s out there clear as day. And Reid’s remarks from 2005 are in direct contradiction to his op-ed in The Washington Post about the Garland nomination, noting that our judicial system and our government were in peril if we didn’t hold hearings and a possible vote.
It’s not an election year. There’s a Republican in the White House. There is no precedent for the Senate Democrats to act this way, though I guess they can fall back on Reid’s insufferable obstructionist antics. They have the news media to give them cover, but the eight-vote obstacle the GOP needs to close for a cloture vote on a SCOTUS nominee is probably what’s going to afford Schumer room to channel his inner-Harry on this matter, pressuring the Trump White House to move towards the center on the Court. Still, I find it hard to believe that Trump will go soft on this issue—and the notion that he’ll pick a liberal to fill Scalia’s vacancy is just absurd. He’ll pick someone from the list drafted by the Heritage Foundation and The Federalist Society, meaning that person whoever he or she is will be qualified to serve on the nation’s highest court.